Boxer Blasts Verizon’s DMCA Subpoena Stance

WASHINGTON — U.S. Sen. Barbara Boxer (D.-Calif.) accused Verizon and SBC Communications of “promoting illegal downloading” and engaging in “hypocritical behavior” by resisting the subpoenas issued by the Recording Industry Association of America (RIAA).

Boxer’s comments came during a Senate Commerce Committee hearing convened to review the controversial subpoena power provisions of the Digital Millennium Copyright Act (DMCA).

The 1998 DMCA allows copyright holders to issue subpoenas to ISPs demanding the name, address and telephone numbers of ISP subscribers suspected of illegally downloading copyrighted material. The subpoenas can be filed prior to any charges of infringement, are not subject to a review by a judge, and requires no notice to, or opportunity to be heard by, the alleged infringer.

Since winning a district court decision earlier this year supporting the legality of the subpoenas, the RIAA has filed more than 1,500 of the subpoenas that have led to 261 copyright infringement suits being filed by the music industry.

In separate actions, both Verizon and SBC are seeking judicial relief from the subpoenas, claiming they are unconstitutional and violate the privacy rights of their customers.

“This holier than thou behavior is hypocritical,” Boxer said. “It seems to me they are attempting to protect privacy of theft.”

Boxer quoted from a Verizon brochure entitled Your Guide to Broadband Living & Content: “Once you’re ready to groove to some tunes[k]eep a couple of things in mind. Subscription sites do offer up MP3s to download; however, they typically don’t offer music that is selling exceedingly well in stores. By contrast, the free sites are likely to have pretty much everything, but you may get pelted with some unwanted ads.”

William Barr, EVP and general counsel for Verizon, told Boxer many “free” sites offer legal downloading and suggested she was quoting the brochure out of context.

“On page one of the brochure we inform customers it is illegal to download copyrighted material,” Barr said.

The DMCA gives Internet service providers (ISPs) liability protections in exchange for assisting copyright owners in identifying and dealing with infringers who misuse the service providers’ systems, including complying with an expedited subpoena process for copyright owners who want to pursue legal action against infringers.

“The DMCA tried to find a balance. I know that ISPs were involved in this compromise. You (Verizon and SBC) didn’t want to be liable (the infringements of their customers),” Boxer said. “It’s rather sad we have come to these circumstances.”

Sen. Ron Wyden (D.-Ore.) told RIAA President Cary Sherman that it appears the music industry is on a “litigation forever” strategy.

“How long will this go on?” Wyden asked.

“Litigation is just one part of a larger paradigm shift in how people get music,” Sherman said. “Since we filed the lawsuits, we have informed more people in one week than anything we’ve previously done. The national debate has been beneficial.”

Wyden again asked Sherman how many lawsuits would be necessary.

“I really can’t answer that,” Sherman replied. “How many has DirecTV had to file to stop satellite piracy? They have filed more than 10,000 (lawsuits), but you don’t hear much about that.”

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